A judicial murder?

The controversial execution of Troy Davis stirs the conscience of many in the U.S. and adds to the debate on the death penalty.

The execution of an innocent man crystallises in the most sickening way the vast systemic injustices that plague our death penalty system.

Denny LeBoeuf, director of the Capital Punishment Project, American Civil Liberties Union.

THE debate over the justness of capital punishment will continue as long as we have an unequal and dubious criminal justice system on our hands. This is not in the Indian context alone. The world over, and especially in the United States, the regimen of sending crime suspects to jail or to the gallows is viewed either as imperfect or heavily loaded against the poor and the otherwise underprivileged. We know in our own country how the whole drill is often manipulated by the rich and politically powerful.

It is gratifying that there are now signs of change as a fallout of the remarkably proactive role of the Supreme Court. It is equally heartening that the lower judiciary has taken its cue from the highest court in the land and has struck terror in those who had, until the other day, thought they were above the law. The accelerated approach to hauling up those in high places for their alleged misdemeanour is, however, no guarantee that the criminal justice system will be totally rid soon of its inconsistencies, biases and corruption. This scepticism is one reason for outrage, particularly in the older and larger democracies such as India, whenever a criminal is sentenced to death. For instance, there is no doubt more than an ounce of politics in the demand for clemency for Rajiv Gandhi killers and Afzal Guru, the man who masterminded the December 2001 attack on Parliament. But beneath it there is the revulsion in many of us at the justification of the state taking the lives of those who themselves may have deliberately taken others' lives. Civilised and enlightened individuals everywhere in the globe look upon judicial execution as the most heinous and barbaric practice that has no business to continue in the 21st century.

Despite this distilled sanity, executions continue with a vengeance. China, Iran, North Korea, Yemen and the U.S. are a few of the countries that do not see anything objectionable in this. The provocation for this lengthy preamble to my column is provided by the most unfortunate execution on September 21 of Troy Davis (42) of Georgia for the alleged murder of MacPhail (27), a Savannah policeman. (Troy Davis was the 1,269th prisoner to be executed in the U.S. since the country restored the death penalty in 1976.)

This has stirred the conscience of many in the U.S. who are unequivocal in their opposition to the death penalty, but now wonder whether they were remiss in not having done enough to put sense into lawfully elected public officials who were guilty of extralegal zeal in ending the lives of those suspected of having killed fellow human beings. The Troy Davis story hogged the attention of the American press for quite a few days. I am pained that this has not received the publicity it deserved in the Indian media. Such instances alone will help build public opinion against the horror of capital punishment. Although Indian courts have retained their sobriety by not imposing this crude and abominable sentence on far too many, there is no room for complacency. Davis was an African American who came from a broken home. He had only modest school education and in fact dropped out in his junior year. While he was just more than 20 years old, he was fined for carrying a concealed firearm. He started working for a company that manufactured railway level crossings. He was irregular at work and stopped working after some time. There was, therefore, everything in his background to suggest that he was unstable and prone to crime.

MacPhail, the son of a Colonel in the U.S. Army, had been in the Savannah Police Department only for three years. He was employed part time in a Burger King restaurant in a Savannah suburb. During the early hours of July 19, 1989, while he was on duty, MacPhail intervened in an attack on Larry Young, a homeless man, in the parking lot of the restaurant. Among those involved in the fracas was Troy Davis. During the incident, MacPhail was shot dead by an unknown person.

On the basis of the statement of one Redd Coles, who incidentally was the individual who had picked a quarrel with Young, Troy Davis was arrested a few days thereafter. Redd had told the police that he saw Davis leaving the scene of murder with a .38 gun after attacking Young. The police could not recover the murder weapon, but picked up only some bullets and shell casings from the scene. After a Grand Jury indictment in late 1989, Davis stood regular trial, where more than 30 witnesses deposed against him. The jury upheld the case against him, and he was eventually awarded the death penalty.

In 1993, the Supreme Court of Georgia turned down Davis' plea for a fresh trial sought by his lawyers on the grounds of problems with the trial site and jury selection. Interestingly, after 1996, seven of the nine witnesses who had deposed against Davis went back on their statements in court. Some of them took the position that whatever they had said against Davis was under police pressure. This was especially during the hearing that took place in June 2010 at a Federal District Court in Savannah on the direction of the U.S. Supreme Court. Davis' execution was stayed on three separate occasions by the authorities, including the State Parole Board and the U.S. Supreme Court.

CLEMENCY PETITIONS

More than 600,000 petitions poured into the State Parole Board demanding clemency to Davis. Nothing succeeded, and the U.S. Supreme Court discussed the matter for three hours on September 21 at the request of Davis' defence counsel before turning down the appeal. Davis maintained his innocence until minutes before he was administered the lethal injection at the Georgia Diagnostic and Classification prison near Jackson, within an hour of the U.S. Supreme Court denying the prisoner's appeal. There are several infirmities in the conviction of Davis. There was no single solid witness who stood by the account that it was actually Davis who shot the policeman. No motive was established as the driving force for the killing. The weapon used for the murder was never recovered.

The other forensic evidence that was let in by the prosecution was slender. The courts that heard Davis' appeal, including the U.S. Supreme Court, gave little weight to the fact that the majority of witnesses had gone back on their original statements charging Davis with the heinous act. An identical case in India possibly would have stood little chance of being upheld in favour of the prosecution, especially against the background of the stand of a few of the witnesses that they had been pressured by the police to depose against the accused. One witness went to the extent of saying that he was hardly literate and did not know on what exactly he had signed and furnished to the police.

Two other factors are worth mentioning here. Deoxyribonucleic acid (DNA) technology has stood the test of time and judicial scrutiny. In many U.S. States, a prisoner, even after conviction, can demand DNA testing, and we know it for a fact that such tests have led to the release of more than hundred innocent prisoners on the death row. Davis' demand for test was rejected because Georgia law did not permit this. Also, there are reports of a poor jury briefing in this case. It is claimed that if the questions to the jury had been correctly framed, the outcome would have been different.

The belief is that trial judges do not have enough faith in the levels of comprehension of the jury, and hence they avoid drafting complicated questions, which would necessarily touch on technical issues vital to conclusively proving the guilt of an accused. There is actually a report of one of the jury who sat on this trial saying that if he had known (at the time of the trial) all that he knew now, he would not have gone with the others in the group. Finally, there is the inevitable race factor that is prominent in a majority of crimes in the U.S. The Davis case is interpreted by many as the white man's act of injustice to a black.

Readers familiar with the U.S. will understand the full import of this accusation. I have written at length on the inconsistencies in the Davis case only to highlight how dangerous it is for the state to take the life of an accused charged with depriving someone else of his life. Of course, there is always room for the debate as to how such apparently soft-pedalled approach to a criminal guilty of serial murders or a heinous offence of child rape followed by murder could be as dangerous as sending an innocent to the gallows. The debate will always remain inconclusive, as it has been in the current discussions over Afzal Guru and the Rajiv Gandhi assassins. Fortunately, India is still a sensible and moderate nation that cares for values in such sensitive matters.

The fly in the ointment, however, is the deliberate politicisation of such issues, which, we must remember, are far too vital to society and to individuals to be left solely to the caprice and vagaries of those whom we elect to public offices.